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Showing 481 to 500 of 1557 Records
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2025 (1) TMI 1078
Challenge to assessment order - non-constitution of Tribunal - HELD THAT:- There was notification dated 16th August, 2024 made by Central revenue reducing latter deposit to 10%. Now, State revenue has correspondingly notified on 29th October, 2024. In the circumstances, the writ petition be disposed of as covered by order dated 16th February, 2024 with modification for deposit of 10% of remaining disputed tax for impugned order to remain stayed.
Petition disposed off.
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2025 (1) TMI 1077
Disallowance of petitioner's claim of Input Tax Credit - ITC sought to be disallowed on the premise that it is ineligible by invoking Section 17(5) of the GST Act - HELD THAT:- To a pointed question as to whether the respondent authority had indicated to the petitioner as to the Clause under Section 17(5) which stood attracted, the learned counsel for the respondent would submit that it appears it was not done.
In the circumstances this Court is inclined to set aside the order. It is open to the respondent authority to issue a notice indicating the Clause under Section 17(5) of the act which gets attracted to enable the petitioner to respond and thereafter proceed in accordance with law after affording the petitioner a reasonable opportunity of hearing.
Petition disposed off.
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2025 (1) TMI 1076
Challenge to impugned order on the premise that the same was made in violation of principles of natural justice - HELD THAT:- The impugned order dated 24.08.2024 is set aside. The petitioner shall deposit 10% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondent, within a period of four weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2025 (1) TMI 1075
Inaction on the part of the respondents in not refunding the amount of GST collected from the petitioner in the course of the execution of the contract that was awarded to the petitioner - grievance of the petitioner is that in spite of repeated approach being made to the respondents, there is a total inaction on the part of the respondents so far as refund of GST is concerned - HELD THAT:- The writ petition as of now stands disposed of directing the State Authorities to immediately process the claim of the petitioner so far as refund of GST is concerned, after due verification of facts and also the entitlement part of the petitioner is concerned. Let an appropriate decision be taken keeping in view the earlier order of the Central Government dated 28.01.2020 and 06.06.2018 (Annexure-P/2) and all subsequent orders also passed in this regard by the Central Government.
Let an appropriate decision be taken within an outer limit of 90 days from the date of receipt of the copy of this order.
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2025 (1) TMI 1074
Blocking the Input Tax Credit (ITC) - Challenge to order issued under Rule 86A(1) of the Kerala State Goods and Services Tax Rules, 2017 - challenge to order issued under Section 74 of the Central Goods and Services Tax/Kerala State Goods and Services Tax Act, 2017 - HELD THAT:- Since the show cause notice specifically alleged that there have been transactions using fake invoices, which were fraudulent in nature, the issue falls within the realm of disputed facts, which cannot be agitated in this proceeding under Article 226 of the Constitution of India.
Since the show cause notice as well as the impugned order specifically refers to the alleged instances of fraudulent acts of the petitioner in accepting fake invoices and supply of goods without actual movement of goods, this is not a proper case for exercising the jurisdiction under Article 226 of the Constitution of India, and the petitioner ought to be relegated to pursue the remedy before the statutory authorities.
Petition dismissed.
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2025 (1) TMI 1073
Challenge to order which was based on a previously quashed Form GST DRC-01 - violation of principles of natural justice - HELD THAT:- The impugned order founded upon such non-existing show-cause notice cannot sustain judicial scrutiny. Therefore, the impugned order is set aside. Liberty is reserved to the respondents to proceed against the petitioner, in accordance with law.
Petition disposed off.
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2025 (1) TMI 1072
Challenge to SCN - Cancellation of client’s registration under Central Goods and Services Tax Act, 2017 - petitioner is ready and willing to pay the tax, interest, late fee, penalty and any other sum required to be paid for the return form - HELD THAT:- Reliance placed in M/s. Mohanty Enterprises [2022 (11) TMI 1521 - ORISSA HIGH COURT] where it was held that 'the delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc., due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.'
Petition disposed off.
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2025 (1) TMI 1071
Challenge to assessment orders - petitioner has not been afforded an opportunity of personal hearing - violation of principles of natural justice - HELD THAT:- It would be appropriate to dispose of these writ petitions setting aside the aforesaid impugned orders and remanding the matter back to the 1st respondent for personal hearing to be given to the petitioner.
Petition disposed off.
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2025 (1) TMI 1070
Principles of natural justice - service of notice - petitioner was given adequate notice and opportunity to respond to the discrepancies identified in their tax filings, as required under the Goods and Services Tax Act, 2017 or not - HELD THAT:- Taking into account the peculiar facts of the case, wherein, the petitioner has already remitted more than 25% (almost 90%) of the disputed taxes, this court is of the view that the petitioner may be granted one final opportunity to put forth his objection, which was not objected to by the learned Special Government Pleader for the respondent.
The impugned order dated 26.06.2024 is set aside - The petitioner shall deposit 25% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondent, within a period of four weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2025 (1) TMI 1069
Challenge to assessment order - violation of principles of natural justice - opportunity of hearing not provided - availing ineligible Input tax credit under GSTR TRAN-I - petitioner is ready and willing to pay 25% of the disputed tax and that he may be granted one final opportunity before the adjudicating authority to put forth their objections to the proposal - HELD THAT:- The impugned order dated 22.12.2023 is set aside and the petitioner shall deposit 25% of the disputed tax within a period of four weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner.
Petition disposed off.
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2025 (1) TMI 1068
Violation of principles of natural justice - proceeding challenged on the ground that the impugned order suffers from non application of mind to the reply and the material furnished by the petitioner - HELD THAT:- It is trite law that Court in exercise of its powers of Judicial review under Article 226 of the Constitution of India, would not get into disputed question of fact nor examine adequacy or sufficiency of evidence. In the present case, it is not conclusive that the Input Tax Credit has been availed only in respect of those supplies in respect of which payments have been made within a period of 180 days from the date of invoice given by the supplier. The above being essentially a question of fact unless shown to be perverse, this Court would not interfere but would rather exercise restraint. Further, the adequacy or sufficiency of evidence is normally not to be examined under Article 226 of the Constitution of India.
It may also be relevant to to refer to the following judgment of the Supreme Court in the case of THANSINGH NATHMAL VERSUS A. MAZID, SUPDT. OF TAXES DHUBRI [1964 (2) TMI 79 - SUPREME COURT], wherein, the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self- imposed restraint and not entertain the Writ Petition, if an alternative effective remedy is available to the aggrieved person.
There can be no doubt that even though the High Court can entertain a Writ Petition against any order or direction passed / action taken by the State and / or its authorities under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law.
Conclusion - Judicial review under Article 226 should not be exercised when an alternative remedy is available, particularly in matters involving factual disputes and adequacy of evidence. This is a case where it is appropriate for the petitioner to avail the alternate remedy by way of an appeal.
Petition dismissed.
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2025 (1) TMI 1067
Reopening of assessment u/s 147 - reasons to believe - reopening the assessment after four years - HED THAT:- Based on the reasons recorded, it is apparent that the information has been culled out from the documents and submissions made in the course of the regular assessment proceedings. Reasons recorded admits that the predecessor officer has not assessed the income correctly. In our view, based on the reasons as recorded the jurisdictional condition contemplated by the first proviso to Section 147 cannot be said to have been satisfied and, therefore, the impugned proceedings are required to be quashed.
Objections raised by the Petitioner regarding the jurisdictional validity of the re-assessment - Petitioner in its objections had raised the jurisdictional objections which is required to be satisfied before re-opening the case. None of these objections has been rebutted by the AO while disposing the order rejecting the objections. The order rejecting objections merely reproduces various judgments. In our view, in the absence of any rebuttal to the objections raised by the Petitioner, it shall be presumed that the Respondents have accepted the objections raised by the Petitioner and, therefore, the impugned proceeding is liable to be quashed.
Reliance on audit objections - Respondents have relied on the audit objections to justify the re-opening. It is settled position that the jurisdiction of re-opening has to be tested on the touchstone of the reasons as recorded and nothing can be added or subtracted thereform. Neither in the reasons recorded nor in the order deciding the objections it is stated that the re-opening is done on the basis of audit objections and, therefore, the contentions raised on this count is also to be rejected.
Order - Declare that the impugned notice u/s148 are wholly without jurisdiction, illegal, arbitrary and liable to be quashed.
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2025 (1) TMI 1066
Revision u/s 263 - non-consideration of trade receivable has resulted in excess claim of ‘Goodwill’ to that extent resulting in excess allowance of depreciation - As argued trade receivables were never transferred to the assessee as part of scheme of Amalgamation - HELD THAT:- In terms with a scheme of Amalgamation sanctioned by NCLT, the assessee acquired the assets and liabilities of CBTPL w.e.f 31.03.2017. The part of assets acquired under the scheme of Amalgamation included goodwill. Undisputedly, in the return of income for the impugned assessment order, the assessee had claimed deprecation on goodwill.
In response to the query raised, the assessee furnished its reply explaining in detail the scheme of Amalgamation and the assets and liabilities acquired on merger of CBTPL. From the reply furnished before the A.O. on 23.03.2021, it can be seen that the assessee had very clearly stated that as per the scheme of Amalgamation, the assets and liabilities of Industrial Solid Waste business unit of CBTPL were transferred and vested with the assessee.
Whereas, post-merger, CBTPL continued with the business of Municipal Solid Waste Management. In support of such contention, the assessee had furnished the scheme of Amalgamation, minutes of board meeting of CBTPL as well as the details of assets and liabilities appearing in the books of CBTPL before demerger.
Thus, from the aforesaid facts, it is very much clear that in course of assessment proceeding, the A.O. had enquired in detail regarding the claim of depreciation on goodwill.
Facts on record clearly demonstrate that allegation of transfer of trade receivable of Municipal Solid Waste Division to the assessee is totally unfounded and rather contrary to the facts and materials on record. In contrast, the Board Resolution of CBTPL and other facts and materials, clearly establish that the trade receivable pertaining to Municipal Waste Division, was never transferred to the assessee under the scheme of Amalgamation.
Thus, in our considered opinion, ld. PCIT has completely misconceived the facts while exercising jurisdiction u/s. 263 of the Act harbouring a wrong notion that the trade receivable relating to Municipal Waste Division has been transferred to the assessee.
Also by simply observing that the assessee was able to adduce partial evidence, ld. PCIT has proceeded to revise the assessment order. Thus, in our view, exercise of power u/s. 263 of the Act, in the facts of the present appeal, is unsustainable. Decided in favour of assessee.
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2025 (1) TMI 1065
Denial of claim of credit for Foreign Tax paid - Form No.67 was not filed before the time limit specified u/s.139(1) and filing of Form No.67 is mandatory to claim the benefit of Foreign Tax Credit - HELD THAT:- Admittedly, in the present case, Form No.67 was not filed within the due date for filing of the return of income under the provisions of section 139(1), but Form No.67 was filed on 23.03.2020.
CPC, Bangalore had processed the return of income as on 18.02.2021, which means that Form No.67 was very much available with the CPC, Bangalore.
CPC, Bangalore cannot deny the claim for credit for foreign tax paid merely because Form No.67 was not filed within the due date specified for filing the return of income under the provisions of section 139(1) of the Act, as it is merely directory in nature.
Our view is fortified by the judgment of Hon’ble Madras High Court in the case of Duraiswamy Kumaraswamy [2023 (11) TMI 1000 - MADRAS HIGH COURT] wherein it has been held that filing of FTC in terms of the Rule 128 is only directory in nature.
The rule is only for the implementation of the provisions of the Act and it will always be directory in nature. We further find support from the decision of this Tribunal in the case of Samiran Arunkumar Dutta [2024 (9) TMI 1267 - ITAT PUNE] where also assessee was employed with same employer but Foreign Tax Credit was allowed even when Form No.67 was filed belatedly.
We direct the JAO to allow the alleged Tax Credit by taking into consideration the Form No.67 filed by the appellant but after due verification. Accordingly, the grounds of appeal raised by the assessee stands allowed.
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2025 (1) TMI 1064
Sub-contract payments as non-genuine and bogus - Non Genuineness of Expenses - estimation of the profit at 8% of the gross contract receipts - addition being the payments to sub-contractors made by the assessee on the ground that the assessee could not substantiate with documentary evidence to his satisfaction regarding the genuineness of such huge payments to the sub-contractors - HELD THAT:- We find before the CIT(A) / NFAC, apart from making elaborate submissions the assessee took an alternate ground that making addition to the total income of the assessee declared on a turnover will give net profit ratio of about 40% which is not possible in such line of business especially when the assessee is doing contract work for government departments.
We find based on the arguments advanced by the assessee, the Ld. CIT(A) / NFAC directed the AO to estimate the profit at 8% of the gross contract receipts.
No infirmity in the order of the CIT(A) / NFAC on this issue. A perusal of the net profit ratio declared by the assessee from assessment year 2015-16 to 2021-22, the details of which are given at para 12 above, gives average net profit rate at 5.37%.
Similarly, various contractors operating near the place of the assessee i.e. near Nashik and engaged in similar line of business are also showing the profit rates ranging from 4% to 8% and in one case such profit rate has been shown at 10.24%.
Provisions of section 44AD of the Act prescribe profit rate of 8% for civil contractors in unaudited cases where the turnover is less than the prescribed limit.
Although in the case of the assessee, the turnover is above the prescribed limit as per the provisions of section 44AD and the accounts are audited, still the provisions of section 44AD can be taken as a parameter for estimating the income.
The average net profit ratio for the last four years i.e. from assessment year 2015-16 to 2021-22 is 5.37%, we are of the considered opinion that the order of CIT(A) / NFAC directing the AO to estimate the profit at 8% is justified under the facts and circumstances of the case. We, uphold the order of the Ld. CIT(A) / NFAC on this issue and the grounds raised by the Revenue are dismissed.
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2025 (1) TMI 1063
Denial of exemption u/s 11 & 12 - filing of Income Tax Return belatedly - HELD THAT:- Upon thoughtful consideration of the matter and granting a dispassionate hearing of the arguments, as apparent that till the date of registration on 23/11/2022, the requirement of compulsory audit did not apply to the assessee appellant, because the status of the trust was unregistered. So the prima facie adjustment is based on hyper–technical grounds and is liable to be jettisoned.
There is no cavil or doubt that the assessee trust has filed the return of income. Dur view is emboldened by the fact that section 12A(1)(b) of the Act has been amended w.e.f. 01/04/2023, by Finance Act, 2023, to encompass that return of income filed u/s 139(1) or 139(4) of the Act will satisfy compliance of section 139(4A) of the Act.
Amendment is a beneficial one and only clarifies the intention of the legislature. Further, there is no further reason to deepdive into the non–furnishing of audit report along with the return of income since the registration was granted belatedly with retrospective effect at the behest of the directions from this forum.
As excruciating to note that a demand has been created on flimsy grounds as aginst the assessee which is in existence since 1965.
For the sake of clarity it is clarified that the assessee trust is successful in assailing the order on twin grounds of submission of return of income as well as submissions of the audit report in tandem with the provisions for the impugned assessment year.
As surprising that the CIT(A) had traversed in an altogether different route to sustain the addition which is also perverse and has been noted cryptically by this forum.
We are in concurrence with the averments raised before us by the A.R. and hold that the entire addition merits full relief and hence the returned income be accepted. Appeal of assessee allowed.
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2025 (1) TMI 1062
Penalty u/s 271AA - Assessee failed to maintain documents specified u/s. 92D read with Rule 10D of the IT Rules - HELD THAT:- Hon'ble Delhi High Court in CIT vs Leroy Somer & Controls India (P) Ltd [2013 (9) TMI 761 - DELHI HIGH COURT] held that before levying penalty u/s. 271AA of the Act the Revenue must first mention the documents or information which was required to be maintained, but Not maintained or not furnished by the assessee then proceed with penalty proceedings.
Penalty u/s. 271AA cannot be levied without specifying the required documents failed to be maintained/furnished by the assessee. Thus the issue is no more res-integra.
Further it is noticed that penalty order was passed in perfunctory manner without giving requisite show-cause notice and without affording proper opportunity of hearing to the assessee.
AO had merely show caused the assessee to file details/documents maintained as per rule 10D of Income-tax Rules, without specifying any particular clause itself.
No merit in levying penalty u/s. 271AA of the Act, holding that the assessee have not maintained proper documents. Even otherwise, international transaction entered upon by the assessee with its AE had been held to be at arm's length by the Ld TPO. Thus, penalty order is not sustainable in law. Decided in favour of assessee.
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2025 (1) TMI 1061
Rectification u/s 154 - applicability of provisions of section 10(23C) - Whether debatable issue is involved? - HELD THAT:-From the facts on record and from the provision of section 10(23C) (iiiad) of the Act, it can be said that the institution is an educational institution existing solely for educational purpose having income less than Rs. 5 crores.
The appellant is a charitable trust providing education and awarding degrees to the students who are the participants of its courses and the degrees are duly recognised by the state government. There is no doubt that the trust having education as its main object. In the entire history of the trust since 1962, education is the only activity undertaken by it, the fact of which is not been disputed by the revenue authorities.
Hence, the claim of exemption u/s 10(23C) is allowable and the revenue authorities are directed to nullify the demand notice issued. Appeal of the assessee is allowed.
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2025 (1) TMI 1060
Addition u/s 69A - cash deposit in the bank account unexplained - HELD THAT:- Assessee has deposited cash in the bank account not only in this year, but in previous years and subsequent years also. The assessee also deposited cash in bank account before and after the demonetization period, in the same pattern, hence cash deposit in the bank account during the year under consideration should not be doubted.
We do not find exceptional or abnormal cash deposit in the bank account. Assessee has furnished plethora of documents and evidences before the AO as well as before the CIT(A), to prove genuineness of the cash deposit in the bank account, which were not appreciated by both the lower authorities. AO has not refuted or discredited these evidences and documents.
AO does not mention why he is not accepting these evidences. On the contrary, the assessing officer has just brushed aside these evidences without even a word on why they are not acceptable.
It is a well settled Law that when an assessee has all the possible evidence in support of its claim, they cannot be brushed aside based on surmises. Hence, we are not inclined to accept the contention of the Assessing Officer in any manner and hence the addition so made is deleted. Hence this ground of the assessee is allowed.
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2025 (1) TMI 1059
CIT(A) dismissing the appeal without addressing specific grounds raised by the assessee rendering the order as suffering from a mistake apparent from the record - Validity of assessment - reasons to believe - HELD THAT:- When the assessee had specifically challenged the validity of the jurisdiction that was assumed by the AO for framing the assessment vide his order passed u/s. 143(3) r.w.s. 147 therefore, CIT(A) ought to have adjudicated the said issue by calling for the assessment records.
Rather, we find that though the assessee vide his rectification application had, inter alia, relied on the judgment of in the case of CIT (Central), Nagpur Vs. Prem Kumar Arjundas Luthra (HUF) [2016 (5) TMI 290 - BOMBAY HIGH COURT] seeking disposal of the appeal vide a speaking order but the first appellate authority by dismissing the said application had allowed his said mistake to perpetuate.
We are unable to concur with the view taken by the CIT(Appeals) who had most arbitrarily dismissed the application filed by the assessee vide his order u/s. 154 r.w.s. 250. Accordingly, we restore the matter to the file of the CIT(Appeals) with a direction to re-adjudicate the appeal after affording a reasonable opportunity of being heard to the assessee. Appeal of the assessee is allowed for statistical purposes
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